Madhav And Ors.. vs State

AFR
Neutral Citation No. - 2026:AHC-LKO:79481-DB
Judgment Reserved on 01.10.2026
Judgment Delivered on 03.11.2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL APPEAL No. - 300 of 1985
Madhav and Ors..
…..Appellant(s)
Versus
State
…..Respondent(s)
Counsel for Appellant(s) : Smt.j. Mathur, Ajai Kumar, K.k.
Tewari, R.n. Shukla, Ramendra
Mishra, Sri P.c. Rastogi, Vinayak
Pathak, Vivek Kumar Rai
Counsel for Respondent(s) : G.A., Abhineet Jaiswal, Amit Yadav,
Neel Kamal Mishra (amicus
Court No. - 11
HON'BLE ABDUL MOIN, J.
HON'BLE PRAMOD KUMAR SRIVASTAVA, J.
(Dictated by Hon’ble Pramod Kumar Srivastava, J.)
1. Heard Sri Vivek Kumar Rai, learned counsel for the appellants
No. 1, 2 and 4, Shri Kaushal Kishore Tiwari, learned counsel appearing
for the appellant No. 3 as well as Sri Pawan Kumar Mishra, learned
A.G.A. for the State.
2. The instant Criminal Appeal under Section 374(2) of the Code of
Criminal Procedure, 1973 (Cr.P.C.) has been filed against the judgment
and order dated 17.04.1985 passed by the learned Xth Additional
Sessions Judge, Sitapur in Sessions Trial No. 460 of 1983 (State vs.

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Madhav & Ors.), arising out of Case Crime No. 50 of 1983, Police
Station Talgaon, District Sitapur.
3. By means of the impugned judgment and order dated 17.04.1985
passed in Sessions Trial No. 460 of 1983, the trial court convicted the
appellant Madhav under Section 302 I.P.C. for intentionally causing the
death of Smt. Malho, along with convictions under Sections 307 and 324
I.P.C. and convicted the co-appellants Sheo Kumar, Sheo Ram and
Munna under Sections 302/34, 307/34 and 324/34 I.P.C., sentencing
them to undergo Imprisonment for Life, 7 years' R.I. and 1 year's R.I.
respectively, with all sentences ordered to run concurrently.
4. The prosecution story, in brief, is that the informant and injured
witness Lachhmi Narain (P.W. 1) along with his family resided in Village
Madarpur Angrasi, Police Station Talgaon, District Sitapur. The accused
persons—namely Munna, Madhav, Shiv Kumar and Sheo Ram (all sons
of Sri Bhagwan Deen)—are cousins of the informant, their respective
houses being situated in close proximity within the same village. On
19.04.1983, at about 04:00 P.M., a dispute arose when accused Madhav
forcibly broke and removed the water spout (parnala) fixed on the
eastern wall of the informant's house having a grievance that the
discharge of water was damaging his adjacent tomato crop.
5. To amicably resolve the dispute, a relation/villager, Sri Jagannath
Prasad Tiwari (P.W. 2), was called and a settlement talk was convened
near the spot around sunset. However, negotiations broke down when
accused Madhav refused to abide by any settlement terms, whereupon
the informant turned to return home. At that juncture, the four accused
persons, in furtherance of common intention, intercepted the informant,
with co-accused Munna, Sheo Kumar and Sheo Ram catching hold of
him from behind, while accused Madhav was armed with a knife.
6. It is specifically alleged that accused Madhav launched an assault,
stabbing the informant Lachhmi Narain (P.W. 1) from behind in the
lumbar region near the back bone. Seeing her husband being attacked,
the deceased, Smt. Malho, rushed forward to shield and rescue him,

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whereupon accused Madhav thrust the knife into her left chest. The blow
resulted in a punctured wound that penetrated her thoracic cavity, cutting
the ascending aorta and causing her instantaneous death on the spot.
Simultaneously, when the informant's daughter, Smt. Bitto, came down
from the roof to intervene and protect her parents, she was also assaulted
and inflicted with knife injuries by accused Madhav.
7. Following the cries of distress, other villagers including Chhotey
Lal Pasi arrived at the scene and attempted to apprehend the assailant
Madhav, but the accused wrenched himself free and all four accused
persons fled towards Angrasi while hurling threats and intimidation.
Promptly thereafter, a written First Information Report (Ex. Ka-1)
scribed by Bankey Lal (P.W. 3) at the dictation of the informant was
dispatched to Police Station Talgaon.
8. On the basis of the written tehrir (Exhibit Ka-1) submitted by the
informant Lachhmi Narain (P.W. 1), a formal First Information Report
(Exhibit Ka-5) was registered on 19.04.1983 at 23:15 hours as Case
Crime No. 50 of 1983 under Sections 302 and 307 I.P.C. at Police
Station Talgaon, District Sitapur.
9. Following the registration of the case, inquest proceedings
(panchayatnama, Exhibit Ka-7) were conducted by the police on the
morning of 20.04.1983 and the dead body of Smt. Malho was dispatched
for post-mortem examination. The autopsy was conducted on 20.04.1983
by Dr. M.K. Pandey (P.W. 6) at the District Hospital, Sitapur, wherein
the cause of death was opined to be shock and hemorrhage as a result of
ante-mortem sharp-edged injuries, including the punctured chest wound.
10. The initial investigation of Case Crime No. 50 of 1983 was
undertaken by S.O. Ashok Kumar Singh (P.W. 9), who inspected the
place of occurrence, prepared the site plan (Exhibit Ka-12) and collected
material physical evidence, including the broken wooden spout (Exhibit
Ex. 1) and blood-stained earth (Exhibit Ka-15). The investigation was
subsequently taken over on 16.06.1983 by S.O. Balram Rai (P.W. 5),
who completed the investigation and submitted the charge-sheet (Exhibit

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CRLA No. - 300 of 1985
Ka-17) against the accused persons—Madhav, Sheo Kumar, Sheo Ram
and Munna—under Sections 302 and 307 read with Section 34 I.P.C.
11. After ensuring compliance with the provisions of Section 207 of
the Cr.P.C. regarding the supply of copies of the police papers to the
accused, the committal court (IVth Additional Munsif Magistrate,
Sitapur) committed the case to the Court of Sessions vide order dated
08.09.1983 under Section 209 of the Cr.P.C. The case was thereafter
made over to the Court of the Xth Additional Sessions Judge, Sitapur for
trial as Sessions Trial No. 460 of 1983.
12. The learned Trial Court, on 07.11.1983, framed formal charges
against accused Madhav under Section 302 I.P.C. (for the murder of Smt.
Malho) and Section 307 I.P.C. (for causing injuries to Bitto and Lachhmi
Narain) and against accused Munna, Sheo Kumar and Sheo Ram under
Sections 302/34 and 307/34 I.P.C. The charges were read over and
explained to the accused persons, who pleaded not guilty and claimed to
be tried.
13. In order to substantiate its case, the prosecution produced and
examined nine witnesses, namely: Sri Lachhmi Narain (P.W. 1, the
injured informant), Jagannath Prasad Tiwari (P.W. 2, mediator/alleged
eye-witness), Bankey Lal (P.W. 3, scribe of the FIR), Guru Sewak (P.W.
4, village Chaukidar), Balram Rai (P.W. 5, S.O. who filed the charge-
sheet), Dr. M.K. Pandey (P.W. 6, Medical Officer who conducted the
autopsy of Smt. Malho), Dr. A.A. Khan (P.W. 7, Medical Officer who
examined the injured Lachhmi Narain and Bitto Devi), Nathu Lal (P.W.
8, Constable who escorted the dead body) and Ashok Kumar Singh (P.W.
9, Investigating Officer).
14. Apart from ocular evidence, the prosecution also adduced and
proved several contemporaneous documentary evidences, including the
written tahrir (Exhibit Ka-1), the post-mortem report of Smt. Malho
(Exhibit Ka-2), the injury reports of Lachhmi Narain and Smt. Bitto
Devi (Exhibits Ka-3 and Ka-4), the chick report (Exhibit Ka-5), the
General Diary entry (Exhibit Ka-6), the panchayatnama of the deceased

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(Exhibit Ka-7), the site plan (Exhibit Ka-12) and recovery memos for the
ornaments, broken spout and blood-stained earth (Exhibits Ka-13, Ka-14
and Ka-15).
15. For the purpose of clarity, convenience and systematic analysis of
the oral, documentary and forensic evidence available on record, the
details of witnesses, exhibits, statements recorded under Section 313
Cr.P.C. and defence evidence are tabulated hereunder:
Table-A: Summary of Examined Witnesses
Witness No. Name & Description
PW-1 Lachhmi Narain (Informant / Injured)
PW-2 Jagannath Prasad Tiwari (Mediator / Eye-Witness)
PW-3 Bankey Lal (FIR Scribe)
PW-4 Guru Sewak (Village Chaukidar)
PW-5 Balram Rai (Sub-Inspector / Subsequent I.O.)
PW-6 Dr. M.K. Pandey (Medical Officer)
PW-7 Dr. A.A. Khan (Medical Officer)
PW-8 Nathu Lal (Constable No. 549)
PW-9 Ashok Kumar Singh (Sub-Inspector / Initial I.O.)
DW-1 Shiv Bhagwan (Defence Witness)
Table-B: Chart of Exhibited Documents & Proof
Exhibit No. Description of Document
Written Tahrir / Complaint
Ex. Ka-1
Post-Mortem Report of Smt. Malho
Ex. Ka-2
Ex. Ka-3 Medico-Legal Injury Report of Lachhmi Narain

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Exhibit No. Description of Document
Medico-Legal Injury Report of Smt. Bitto Devi
Ex. Ka-4
Chick First Information Report
Ex. Ka-5
General Diary Entry No. 36
Ex. Ka-6
Inquest Report (Panchayatnama)
Ex. Ka-7
Site Plan (Naksha Nazari) & Index
Ex. Ka-12
Recovery Memo of Ornaments / Supurdginama
Ex. Ka-13
Recovery Memo of Broken Spout
Ex. Ka-14
Recovery Memo of Earth
Ex. Ka-15
Charge-Sheet
Ex. Ka-17
General Diary Entry No. 20
Ex. Kha-1
Contradiction Statement u/s 161 Cr.P.C.
Ex. Kha-2
Broken Wooden Spout (Parnala)
Material Ext.1
16. PW-1, Lachhmi Narain, the informant and injured star witness,
deposed in his examination-in-chief that the accused persons—Madhav,
Munna, Shivkumar and Sheo Ram—are his real cousin brothers and
reside in close vicinity. He testified that on a Tuesday in the month of
Chait at about 04:00 P.M., accused Madhav forcibly broke his wooden
water spout (parnala) fixed on the eastern wall of his house. Around

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CRLA No. - 300 of 1985
sunset, their relative Jagannath Prasad Tiwari (PW-2) arrived to mediate
the dispute. When negotiations failed as Madhav refused to settle, PW-1
turned to return to his house. At that juncture, the three co-accused
Munna, Shivkumar and Sheo Ram caught hold of him from behind,
whereupon accused Madhav pulled out a knife and stabbed him near the
lumbar vertebrae of his spine. He further deposed that when his wife,
Smt. Malho, rushed to shield him and wrapped herself around him,
accused Madhav stabbed her in the left chest, as a result of which she
collapsed and died on the spot. Simultaneously, when his daughter Bitto
jumped down from the roof to rescue them, Madhav stabbed her on her
wrist and fingers. PW-1 proved the written tehrir (Exhibit Ka-1) scribed
by Bankey Lal. During cross-examination, he admitted that tomato
plants were standing over the disputed land, but denied that his family
uprooted them. Crucially, when confronted with his police statement and
the FIR, he conceded that he had not specified in the FIR or to the
Investigating Officer as to which accused held which specific part of his
body.
17. PW-2, Jagannath Prasad Tiwari, the independent mediator and
alleged eye-witness, deposed that he went to the village to mediate the
dispute between the parties. He testified that after talks failed, Madhav
stabbed Lachhmi Narain. However, he categorically stated in his
deposition: "Munna was standing far away and remained standing there".
He further deposed that immediately after Lachhmi Narain was assaulted
and started bleeding, he left the spot and returned home, stating
unequivocally that no other incident took place in his presence and that
he only heard about the death of Smt. Malho subsequently. In his cross-
examination, PW-2 admitted that Lachhmi Narain and his wife were
actively uprooting tomato plants and that a scuffle (lipta-lipti) had
ensued between Madhav and the deceased lady.
18. PW-3, Bankey Lal, the scribe of the First Information Report,
deposed that on 19.04.1983, he scribed the written report (Exhibit Ka-1)
at the dictation of the complainant Lachhmi Narain. However, during
cross-examination, he made a vital concession, admitting: "On the night

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CRLA No. - 300 of 1985
of the incident, the Sub-Inspector had arrived in the village at 10:00 P.M.
I scribed the report in the presence of the Sub-Inspector. Lachhmi Narain
was dictating and wherever any sentence was erroneous, the Sub-
Inspector got it corrected".
19. PW-4, Guru Sewak, the village Chaukidar, deposed that upon
receiving information, he reached Village Madarpur at about 06:00 P.M.,
where he found the deceased lying dead and Lachhmi Narain and his
daughter injured. He stated that he received the written tehrir from the
informant and carried it on foot to Police Station Talgaon (a distance of 8
kilometers), returning to the village at 01:00 A.M. in the night. He also
proved accompanying Constable Nathu Lal with the dead body to the
mortuary on the following morning. In his cross-examination, he
admitted that despite the village having 40 to 50 households, no villager
provided a conveyance to transport the injured or the dead body.
20. PW-5, Balram Rai, Sub-Inspector, deposed that he took over the
investigation of the case on 16.06.1983 from the previous Investigating
Officer, perused the Case Diary and interrogated the accused persons. He
examined the chaukidar and witness Jagannath Tiwari and upon
completion of investigation, submitted the formal charge-sheet (Exhibit
Ka-17) against all four accused persons under Sections 302, 307 and 324
read with Section 34 I.P.C.
21. PW-6, Dr. M.K. Pandey, Medical Officer, District Hospital,
Sitapur, proved the post-mortem examination report of deceased Smt.
Malho (Exhibit Ka-2). He deposed that on 20.04.1983 at 02:30 P.M., he
conducted the autopsy and noted five ante-mortem injuries, including a
punctured wound measuring 5 cm x 1 cm x chest cavity deep on the left
upper chest, which penetrated the left lung, costal cartilages and cut the
ascending aorta by 0.5 cm, causing about two litres of blood to pool in
the thoracic cavity. He opined that the cause of death was shock and
hemorrhage resulting from ante-mortem injuries. In his cross-
examination, PW-6 admitted that injury Nos. 1 and 2 were more likely to
have been caused by a double-edged weapon (do-dhari hathiyar) and

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conceded that the possibility of injury Nos. 1 and 2 being inflicted by a
single stroke was low.
22. PW-7, Dr. A.A. Khan, Medical Officer, District Hospital, Sitapur,
proved the injury reports of the injured witnesses. He deposed that on
20.04.1983 at 11:15 A.M., he examined Lachhmi Narain (Exhibit Ka-3)
and found a vertical incised wound measuring 2 cm x 1.5 cm x 1 cm on
the left lumbar back at the level of the 3rd lumbar vertebra. He also
proved the injury report of Smt. Bitto Devi (Exhibit Ka-4) examined on
the same day at 11:00 A.M., which revealed two superficial incised
wounds on her right elbow and right middle finger. In cross-
examination, PW-7 admitted that Lachhmi Narain's wound appeared
triangular in shape and that both injuries found on Bitto were superficial
and could have been caused by contact with broken glass.
23. PW-8, Nathu Lal (Constable No. 549), deposed that on
20.04.1983 at 07:45 A.M., he was handed over the sealed dead body of
Smt. Malho along with the inquest papers from Village Madarpur, which
he safely brought and deposited at the mortuary in Sitapur at 11:20 A.M.
without any tampering.
24. PW-9, Ashok Kumar Singh, Sub-Inspector and initial
Investigating Officer, deposed that on 19.04.1983 at 23:15 hours, the
crime was registered in his presence at Police Station Talgaon. He
reached the scene of crime at 00:45 hours and dispatched the injured to
the hospital via bullock cart at 02:05 hours. He conducted the inquest
proceedings (Exhibit Ka-7), prepared the site plan (Exhibit Ka-12) and
effected recovery of the ornaments (Exhibit Ka-13), the broken wooden
spout (Exhibit Ka-14) and blood-stained earth (Exhibit Ka-15). In cross-
examination, PW-9 admitted that he omitted to show the exact spot
where the dead body originally lay on the site plan because it had
already been shifted onto a quilt (kathri). He further admitted that
although parts of the ground appeared dug up and tomato plants were
found uprooted, he did not record these details in the Case Diary.

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CRLA No. - 300 of 1985
25. DW-1, Shiv Bhagwan, was examined as a defence witness. He
deposed that his house is situated 30–35 yards right opposite the
complainant’s house. He testified that at sunset, he heard a commotion
and saw deceased Malho rushing towards Madhav armed with a 1.5-
cubit bamboo stick (danda) and striking him. In order to defend and free
himself, Madhav pulled out a small vegetable-cutting knife and struck
her once or twice. At that time, Lachhmi Narain and his daughter were
uprooting tomato plants and they grappled with Madhav. DW-1
categorically testified that co-accused Munna, Sheo Ram and Shivkumar
were not present at the spot and that only Madhav was there.
26. Upon the prosecution adducing and formally exhibiting the written
report (Exhibit Ka-1), post-mortem report (Exhibit Ka-2), injury reports
(Exhibits Ka-3 & Ka-4), chick FIR (Exhibit Ka-5), General Diary entry
(Exhibit Ka-6), inquest report (Exhibit Ka-7), site plan (Exhibit Ka-12),
recovery memos (Exhibits Ka-13 to Ka-15), charge-sheet (Exhibit Ka-
17) and material exhibit broken spout (Material Exhibit 1), the
prosecution closed its evidence.
27. Upon closure of the prosecution evidence, the statements of the
accused persons were recorded under Section 313 of the Cr.P.C. All
incriminating circumstances appearing against them in the prosecution
evidence were put and explained to them.
28. Co-accused Munna (aged 24 years), Sheo Ram (aged 16 years)
and Shivkumar (aged 14 years, student) pleaded total denial and false
implication, specifically stating that they were not present at the spot
("main mauke par nahi tha") and were falsely roped in due to family
enmity arising from their brother Madhav's dispute.
29. Accused Madhav Ram (aged 29 years), in his examination under
Section 313 Cr.P.C. read with his separate written statement (Paper No.
57), set up a specific plea of the Right of Private Defence. He stated that
the complainant party was forcibly uprooting and destroying his fruit-
bearing tomato crop sown over his land. When objected to, the deceased
Malho assaulted him with a stick. He admitted that to save himself and

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CRLA No. - 300 of 1985
free himself from the assault, he struck her using a small, single-edged
vegetable knife without any intention to cause death and pushed away
Lachhmi Narain and Bitto when they grappled with him. He reiterated
that he was alone at the spot and none of his three brothers were present.
30. Learned Trial Court, after hearing learned counsels for both the
parties, considering the overall facts and circumstances of the case and
the evidence on record, concluded that the prosecution had successfully
proved its case against all four accused persons beyond all reasonable
doubt. The Trial Court completely rejected the plea of right of private
defence set up by appellant Madhav, holding that the force used was
grossly disproportionate to the alleged damage caused to tomato plants.
The Trial Court further held that co-accused Munna, Sheo Kumar and
Sheo Ram shared a common intention with Madhav, as they actively
caught hold of the victims from behind, facilitating the deadly stabbing.
Consequently, the learned Trial Court convicted appellant Madhav under
Section 302 IPC (for the murder of Smt. Malho), Section 307 IPC (for
the assault on Lachhmi Narain) and Section 324 IPC (for the injury to
Smt. Bitto), sentencing him to undergo Imprisonment for Life, 7 years'
R.I. and 1 year's R.I. respectively. The co-accused Munna, Sheo Kumar
and Sheo Ram were convicted under Section 302 read with Section 34
IPC, Section 307 read with Section 34 IPC and Section 324 read with
Section 34 IPC and awarded identical concurrent sentences.
31. Being aggrieved and dissatisfied with the impugned judgment and
order of conviction and sentence dated 17.04.1985 passed in Sessions
Trial No. 460 of 1983, the appellants have preferred the instant criminal
appeal before this Hon'ble Court.
Finding of the learned Trial Court
32. The learned Trial Court, upon a holistic appreciation of the
evidence, observed that the testimony of the injured complainant
Lachhmi Narain (PW-1) was natural, reliable and trustworthy, which
stood fully corroborated by the medical evidence adduced by Dr. M.K.
Pandey (PW-6) and Dr. A.A. Khan (PW-7). The Trial Court discarded

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CRLA No. - 300 of 1985
the defence theory of right of private defence of person and property,
holding that human life cannot be sacrificed for a few tomato plants,
especially when the complainant party was unarmed. The Trial Court
disbelieved the testimony of DW-1 Shiv Bhagwan as being partisan and
untruthful and rejected the plea of delayed FIR set up by the defence.
Regarding co-accused Munna, Sheo Ram and Sheo Kumar, the Trial
Court recorded a categorical finding that their presence at the spot and
their overt act of catching hold of the victims established prior meeting
of minds and common intention under Section 34 IPC. The Trial Court
also repelled the argument regarding juvenility raised on behalf of Sheo
Kumar and Sheo Ram, holding that both possessed sufficient maturity
and understanding of the consequences of their acts, thereby sustaining
their conviction along with appellant Madhav.
33. We have heard learned counsel for the appellants and learned
A.G.A. for the State.
34. Upon hearing learned counsel for the parties and examining the
lower court record, the following points arise for our determination in
this appeal:
(i) Whether the trial court could legally convict the accused-
appellants Munna, Shiv Kumar and Sheo Ram with the aid of
Section 34 of the Indian Penal Code (IPC) in the absence of a
specific charge framed under Section 302 IPC?
(ii) Whether the prosecution has established that the appellants
acted in furtherance of a common intention, or whether it failed
to prove a prior concert or meeting of minds among them?
(iii) Whether the complainant party was the aggressor and
appellant Madhav acted in the exercise of the right of private
defence of person and property?
(iv) Whether the incident occurred upon a sudden quarrel on
the spur of the moment without premeditation?

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CRLA No. - 300 of 1985
(v) Whether the testimonies of the eye-witnesses (PW-1 and
PW-2) are of sterling quality and inspire confidence?
(vi) Whether the trial court failed to give due weightage to the
testimony of defence witness DW-1?
(vii) Whether the sentence awarded to appellants Sheo Ram
and Shiv Kumar is contrary to the statutory protection
governing juveniles?
(viii) Whether the findings recorded by the learned trial court
suffer from patent perversity warranting interference in appeal?
Point No. (i): Omission to Frame Charge under Section 302 IPC
35. Learned counsel appearing for the appellants vehemently
contended that while a formal charge under Section 302 IPC was framed
against appellant Madhav, no charge under Section 302 IPC was framed
against the remaining three appellants—Munna, Shiv Kumar and Sheo
Ram. It is submitted that the trial court framed charges against them only
under Section 307 read with Section 34 IPC and Section 341 IPC.
Consequently, their conviction under Section 302 read with Section 34
IPC is contrary to law and stands vitiated on the ground of non-framing
of charge.
36. Per contra, learned A.G.A. submitted that from the inception, the
FIR (Exhibit Ka-5) was registered against all four appellants under
Sections 302 and 307 IPC. Following the investigation, the Investigating
Officer submitted the charge-sheet (Exhibit Ka-17) under Sections 302
and 307 read with Section 34 IPC. The competent Magistrate took
cognizance and committed the case to the Court of Session on
08.09.1983, specifically noting the allegations under Sections 302 and
307 IPC. Throughout the trial, the prosecution led evidence focusing on
the fatal assault and the defence cross-examined the prosecution
witnesses fully aware of the core accusations. Furthermore, during their
examination under Section 313 Cr.P.C., the circumstances relating to the
murder were specifically put to Munna, Shiv Kumar and Sheo Ram.

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CRLA No. - 300 of 1985
Learned A.G.A. submitted that under Section 464 read with Sections
211, 212, 213, 214 and 215 of the Code of Criminal Procedure, 1973
(Cr.P.C.), an omission or defect in framing a charge does not invalidate a
conviction unless the accused demonstrates that actual prejudice and a
failure of justice have been occasioned.
37. We have considered the rival submissions on this point. Sections
211 to 215 Cr.P.C. govern the contents and particulars of a charge, the
primary object being to provide the accused with clear notice of the
accusations to be met. Section 464 Cr.P.C. provides that an order or
finding of a competent court cannot be deemed invalid merely due to an
omission, error, or absence of charge, unless the appellate court
concludes that a failure of justice has in fact occurred.
38. In Kamil v. State of U.P., (2019) 12 SCC 600 , the Hon’ble
Supreme Court examined the scope of Section 464 Cr.P.C. and reviewed
the legal principles governing prejudice and failure of justice from
foundational authorities, including the Constitution Bench decision in
Willie (William) Slaney v. State of M.P (AIR 1956 SC 116),
Gurbachan Singh v. State of Punjab (AIR 1957 SC 623), Main Pal v.
State of Haryana [(2010) 10 SCC 130] & Darbara Singh v. State of
Punjab [(2012) 10 SCC 476] . The Hon’ble Supreme Court emphasized
that procedural provisions are designed to advance justice rather than
frustrate it through technicalities. A defect or omission in framing a
charge will not vitiate the proceedings if the accused understood the
basic ingredients of the offence, had the case fairly explained to him and
received a full opportunity to defend himself.
39. Applying these principles to the record, the gravamen of the
charge-sheet (Exhibit Ka-17) clearly alleged that the appellants acted
with common intention in the fatal assault. During their examination
under Section 313 Cr.P.C., the incriminating circumstances emerging
from the ocular and medical evidence were explicitly put to Munna, Shiv
Kumar and Sheo Ram. Each of them answered these questions without
raising an objection that they were unaware of the allegations of murder.

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CRLA No. - 300 of 1985
40. Furthermore, upon being held guilty by the trial court, when heard
on the quantum of sentence, the only plea advanced on behalf of Shiv
Kumar and Sheo Ram was regarding their juvenility (aged about 15 and
17 years). No grievance was voiced that they were prejudiced by the
absence of a specific charge under Section 302 read with Section 34 IPC.
It is evident that the appellants were fully conversant with the allegations
and defended themselves against the charge of murder throughout the
trial.
41. Thus, from the above, it is clear that non-framing of a charge will
not vitiate the trial and conviction when the accused was aware of the
accusation and had been given an ample opportunity of defence. We find
no failure of justice on this score and the contention raised by learned
counsel for the appellants is without merit.
Point No. (ii): Common Intention under Section 34 IPC
42. Learned counsel for the appellants next submitted that the
prosecution failed to prove that the appellants acted in furtherance of a
common intention. It is urged that the FIR and ocular testimonies do not
disclose any prior concert or pre-arranged plan among the brothers. PW-
2 Jagannath Prasad Tiwari testified that Munna was standing far away
and denied that Shiv Kumar or Sheo Ram actively participated.
Furthermore, PW-1 Lachhmi Narain was only assigned a general role of
catching hold without attributing individual actions to the brothers in his
earlier statement to the police. Learned counsel placed reliance on
Dharam Pal v. State of Haryana, 1978 CriLJ 1338 and Ramashish
Yadav v. State of Bihar, (1999) 8 SCC 555 , to contend that mere
presence or a sudden catching hold during an unexpected quarrel does
not warrant the invocation of Section 34 IPC.
43. Per contra, learned A.G.A. contended that the participation of all
four brothers is clearly established from the evidence of the injured star
witness PW-1. Appellant Madhav was armed with a knife, while the
other three brothers actively restrained the informant, facilitating the

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CRLA No. - 300 of 1985
stabbing. It is submitted that common intention can form on the spur of
the moment and does not always require prior concert.
44. To properly evaluate these contentions, it is pertinent to review the
undisputed family tree deposed to by PW-1 Lachhmi Narain:
Matadeen
___________________|___________________
| | |
Puttoo Lal Prayag Dutt Bhagwan Deen
| | |
Jagdish Laxmi Narayan |
(PW-1) |
_________________________________________
| | | |
Madho Munna Shiv Kumar Sheo Ram

45. As seen from the pedigree, the parties are first cousins residing in
close proximity within Village Madarpur. The topography deposed to by
PW-1 establishes that the water spout (parnala) was fixed on the eastern
wall of the informant's house, while the disputed land below it was
claimed by Madhav for his tomato crop. The broken parnala and
damaged crop formed the source of their strained relationship,
prompting the arrival of PW-2 Jagannath Prasad Tiwari to mediate.
46. In criminal jurisprudence, for establishing constructive liability
with the aid of Section 34 IPC, the prosecution must establish a meeting
of minds and a shared intention to commit the crime. In Jasdeep Singh
@ Jassu v. State of Punjab, (2022) 2 SCC 545 , reiterated in Surendra
Singh v. State of Uttarakhand, (2025) 5 SCC 433 , the Hon’ble
Supreme Court affirmed that conviction with Section 34 IPC requires the
prosecution to prove that the criminal act was committed in furtherance
of a shared common intention and that the accused had a prior

17
CRLA No. - 300 of 1985
understanding, either pre-arranged or formulated, immediately prior to
the act.
47. At the same time, it is well established that common intention
need not always be the result of long premeditation; it can develop on
the spot during the course of the occurrence. As observed in Suresh
Chauhan v. State of M.P., 2000 SCC (Cri) 772, the essence of Section
34 IPC is a simultaneous consensus of minds among persons in criminal
action, which may develop at the scene. This principle was also affirmed
by the Hon’ble Supreme Court in State of Karnataka v. Battegowda,
Criminal Appeal No. 1694 of 2014 (referring to Dharnidhar v. State
of U.P., (2010) 7 SCC 759 ), observing that a meeting of minds and
common intention can develop on the spur of the moment during the
course of an incident.
48. The existence of common intention is an inference of fact to be
drawn from the conduct of the accused and the surrounding
circumstances with a reasonable degree of certainty ( Bengai Mandal v.
State of Bihar, AIR 2010 SC 686 ). In the present case, when the talks
broke down, PW-1 turned to return to his house. At that moment, the
three brothers—Munna, Shiv Kumar and Sheo Ram—restrained PW-1,
enabling Madhav to strike him with a knife in the back. Their collective
act of holding the informant immobilized him and directly aided the
armed assailant. The nature and manner of their active participation
demonstrate a shared consensus on the spot to commit the assault,
establishing that the acts were executed in furtherance of their common
intention.
Points No. (iii), (iv), (v) & (vi): Private Defence, Aggression and
Credibility of Eye-Witnesses
48. Learned counsel for the appellants submitted that the deceased
Smt. Malho was the aggressor, having attacked Madhav with a bamboo
stick (danda) while uprooting his tomato plants and that Madhav acted in
private defence to protect himself and his property. It is further argued
that the testimonies of PW-1 and PW-2 do not meet the standard of

18
CRLA No. - 300 of 1985
sterling quality, whereas the testimony of defence witness DW-1 Shiv
Bhagwan was arbitrarily discarded by the trial court.
49. Per contra, learned A.G.A. submitted that the defence version of
the deceased wielding a danda was an afterthought. No stick was
recovered from the spot by the Investigating Officer and no suggestion
to that effect was put to the eye-witnesses during their cross-
examination.
50. Further, learned A.G.A. submitted that PW-1 Lachhmi Narain is
an injured eye-witness whose presence at the scene of crime is stamped
by his bodily injuries and stands on a higher evidentiary pedestal. His
testimony is natural, cogent and unimpeached and finds complete
corroboration from the medical evidence proved by Dr. M.K. Pandey
(PW-6) and Dr. A.A. Khan (PW-7).
51. We have evaluated the ocular evidence in juxtaposition with the
medical findings. Under Section 134 of the Indian Evidence Act, 1872,
no particular number of witnesses is prescribed to establish any fact, as it
is the intrinsic quality and not the quantity of evidence that determines
its probative worth. As held by the Hon'ble Apex Court in Vadivelu
Thevar v. State of Madras, AIR 1957 SC 614, witnesses broadly fall
into three categories: (i) wholly reliable, (ii) wholly unreliable and (iii)
neither wholly reliable nor wholly unreliable.
52. In the present case, PW-1 Lachhmi Narain is an injured victim
whose testimony carries inherent credibility. He consistently narrated the
overt acts, stating that when he turned back, co-accused Shiv Kumar and
Sheo Ram pinned his arms from behind while Munna held his leg,
enabling appellant Madhav to stab him in the back, followed by the fatal
assault on his wife Smt. Malho and the injury to his daughter. No
material contradiction or embellishment could be elicited in his cross-
examination. So far as PW-2 Jagannath Prasad Tiwari is concerned, his
testimony must be evaluated in its entirety; while he deposed that he left
the spot immediately upon Lachhmi Narain sustaining the initial knife

19
CRLA No. - 300 of 1985
blow, he never affirmatively ruled out the presence of the other accused
persons at the place of occurrence.
53. Furthermore, appellant Madhav, in his statement under Section
313 Cr.P.C. read with his written statement (Paper No. 57), explicitly
admitted to having inflicted knife blows upon Lachhmi Narain, Smt.
Malho and Kumari Bitto. This unequivocal admission of the assault
substantially corroborates the ocular version. Merely because the
witnesses are related to the deceased does not render them untruthful,
particularly when the occurrence unfolded at the doorsteps of their
adjoining houses. We find that the testimony of PW-1 is cogent, credible
and fully inspires confidence.
54. Further, a careful scrutiny of the cross-examination of PW-1
Lachhmi Narain reveals the sequence of the attack which follows as
under:
"Only a single knife blow was inflicted upon me. Since my wife
came in between, Madho inflicted a knife blow on her chest. No
injury was caused to me thereafter. After I sustained the knife
blow, my wife rushed to save me. At that time, I was sitting with
the support of one foot/leg. My wife was shorter in height than
me and reached up to my shoulders. My wife slumped over me
from the front to cover me. She had rushed in from the southern
direction and clung to me from the right side. While she was
clinging to me in order to protect me, Madho inflicted a knife
blow on her left side. Madho struck the knife blow on my wife
from the front. I saw the knife blow being struck right in front of
me, after which my wife fell down. By that time, Bitto jumped
down from above and came there. Then Madho started
assaulting Bitto as well. When my wife fell down after
sustaining the injury, I remained sitting in the very same
position because I could not stand up at all. When Bitto arrived,
my wife was bleeding and lying on the ground. My wife was
lying towards my south. At that time, Madho was towards the

20
CRLA No. - 300 of 1985
north of my wife. There was a distance of about one to one-and-
a-half cubits between my wife and me. Immediately upon my
wife falling down, my daughter Bitto jumped down; she had
jumped to save us. Madho inflicted a knife blow upon her as
well."
55. This deposition demonstrates that when PW-1 sustained the initial
stab wound, his wife Smt. Malho rushed in unarmed to shield her injured
husband. Both PW-1 and the deceased were unarmed. During the cross-
examination of PW-1, the defence did not put any suggestion that the
deceased was armed with a stick or that she had struck Madhav.
56. Similarly, PW-2 Jagannath Prasad Tiwari, who arrived to arbitrate
the dispute, confirmed that an argument ensued regarding the drainage
and the tomato crop, during which a scuffle took place. However, his
evidence does not show that the deceased, her husband, or their daughter
held any weapon.
57. The plea of the deceased wielding a danda was introduced for the
first time by Madhav in his written statement under Section 313 Cr.P.C.
(Paper No. 57) and supported by DW-1 Shiv Bhagwan. However, the
Investigating Officer (PW-9) found no stick or weapon associated with
the complainant party at the scene. The omission to confront the
prosecution eye-witnesses with this fundamental factual assertion during
cross-examination confirms that the danda narrative was introduced at a
later stage as an afterthought.
58. While a citizen is entitled to protect person and property, the right
of private defence is governed by the principles of proportionality and
necessity under Sections 96 to 106 IPC. Even assuming a dispute existed
regarding the uprooting of some tomato plants, causing death by
stabbing an unarmed woman in the chest with a knife cannot be justified
as an exercise of private defence. The plea that the deceased was the
aggressor and that appellant Madhav acted in the right of private defence
is therefore untenable and was rightly rejected by the trial court.

21
CRLA No. - 300 of 1985
Point No. (iv): Plea of Grave and Sudden Provocation (Exception 1
to Section 300 IPC)
59. Learned counsel appearing for the appellants vehemently
contended that the act of appellant Madhav was devoid of any
premeditation or murderous intent and was committed whilst he was
deprived of the power of self-control on account of grave and sudden
provocation. It is submitted that when the parties assembled to negotiate
an amicable settlement regarding the tomato crops, the deceased Smt.
Malho abruptly began uprooting the fruit-bearing tomato plants and
assaulted Madhav with a stick (danda), which triggered an instantaneous
loss of self-control, leading to the unfortunate incident. In support of his
contention that an act committed under grave and sudden provocation
excludes the offence of murder, learned counsel placed reliance upon the
decision of the Hon’ble Supreme Court in Muthu v. State by Inspector
of Police, T.N., (2009) 17 SCC 433, wherein it was observed:
“ 10. ... we are satisfied that the accused was deprived of the
power of self-control by grave and sudden provocation which
led him to commit the offence. If rubbish is thrown into one's
house/shop, one would naturally get very upset. It is evident
that the accused had no motive to cause the death of the
deceased since the accused was not carrying the knife from
before and only picked it up during the scuffle with the
deceased... In our opinion, throwing rubbish/waste inside the
house/shop of somebody is certainly a grave and sudden
provocation. Everyone wishes to keep his premises neat and
clean and is likely to lose his self-control in such a situation.
The incident in question occurred in a sudden fight in the heat
of passion upon a sudden quarrel without the appellant having
taken any undue advantage or acted in a cruel or unusual
manner."
56. Learned counsel further placed reliance upon the judgment of the
Hon'ble Apex Court in Buddhi Singh v. State of H.P., (2012) 13 SCC
663, wherein the doctrine of grave and sudden provocation was
expounded in the following terms:
“18. The doctrine of grave and sudden provocation is
incapable of rigid construction leading to or stating any
principle of universal application. This will always have to
depend on the facts of a given case. While applying this

22
CRLA No. - 300 of 1985
principle, the primary obligation of the court is to examine
from the point of view of a person of reasonable prudence if
there was such grave and sudden provocation so as to
reasonably conclude that it was possible to commit the offence
of culpable homicide and as per the facts, was not a culpable
homicide amounting to murder. An offence resulting from grave
and sudden provocation would normally mean that a person
placed in such circumstances could lose self-control but only
temporarily and that too, in proximity to the time of
provocation. The provocation could be an act or series of acts
done by the deceased to the accused resulting in inflicting of
injury."
57. Per contra, learned A.G.A. countered that the parties were
embroiled in a dispute regarding the discharge of water from the parnala
(spout) and the tomato plants sown over the adjacent land. In the ensuing
scuffle, appellant Madhav, who was already armed with a deadly knife,
launched a murderous assault on the informant Lachhmi Narain (PW-1).
When the deceased Smt. Malho rushed in unarmed to shield her
husband, Madhav inflicted a fatal stab wound deep into her chest cavity
and when their young daughter intervened, she too was inflicted knife
injuries. Learned A.G.A. urged that the victims were completely
unarmed and defenseless, ruling out any apprehension of injury or death
to the accused party. The severity and anatomical site of the fatal wound
—puncturing the ascending aorta—clearly manifest an intentional and
deliberate homicide, completely negating the plea of sudden
provocation.
58. We have given our thoughtful consideration to the rival
submissions and perused the statutory provisions. Exception 1 to Section
300 of the Indian Penal Code mandates:
“Exception 1.—When culpable homicide is not murder.—
Culpable homicide is not murder if the offender, whilst
deprived of the power of self-control by grave and sudden
provocation, causes the death of the person who gave the
provocation or causes the death of any other person by mistake
or accident.
The above exception is subject to the following provisos:—
(First)—That the provocation is not sought or voluntarily
provoked by the offender as an excuse for killing or doing
harm to any person.

23
CRLA No. - 300 of 1985
(Secondly)—That the provocation is not given by anything
done in obedience to the law, or by a public servant in the
lawful exercise of the powers of such public servant.
(Thirdly)—That the provocation is not given by anything done
in the lawful exercise of the right of private defence.
Explanation.—Whether the provocation was grave and sudden
enough to prevent the offence from amounting to murder is a
question of fact."
59. On an anxious scrutiny of the record, we are unable to persuade
ourselves to accept the submissions advanced on behalf of the
appellants. The ocular testimony of the injured star witness PW-1
Lachhmi Narain clearly demonstrates the topography: the courtyard of
Bhagwan Deen lies towards the east of the informant's house and below
the wooden spout (parnala), the informant's land is situated where
appellant Madhav had encroached by planting a tomato crop. When the
mediator’s efforts failed and the informant turned to return home,
appellant Madhav, armed with a knife, stabbed him in the lumbar back,
while co-appellants Shiv Kumar, Sheo Ram and Munna physically
restrained him. When the deceased rushed forward to cover her husband
from further blows, Madhav thrust the knife into her chest.
60. Crucially, during the extensive cross-examination of PW-1, not
even a suggestion was thrown by the defence that the deceased was
armed with a danda or that she had struck Madhav with it. PW-2
Jagannath Prasad Tiwari, an independent mediator present on the spot,
categorically deposed that Lachhmi Narain held no danda or weapon in
his hand. The victims being entirely unarmed, there existed no imminent
peril to the person or property of the accused that could reasonably
justify a loss of self-control in a person of ordinary prudence. The law is
firmly settled that mere resentment cannot be permitted to masquerade
as grave and sudden provocation; where an offender arms himself and
takes undue advantage of unarmed persons to commit homicide, the
beneficial umbrella of Exception 1 to Section 300 IPC is wholly
inapplicable. Thus, the plea of grave and sudden provocation is sans
merit and stands rejected.

24
CRLA No. - 300 of 1985
Point No. (v): Credibility and Sterling Quality of Eye-Witnesses
(PW-1 & PW-2)
61. It is next contended on behalf of the appellants that the
prosecution case rests upon the testimonies of PW-1 and PW-2, who do
not meet the test of witnesses of sterling quality and that the deposition
of PW-1, being an interested relative, lacks independent corroboration. It
is argued that PW-2 Jagannath Prasad Tiwari did not support the
complicity of the remaining co-accused persons, rendering their presence
and active participation highly doubtful.
Point No. (vi): Evaluation of Defence Evidence (DW-1)
62. Learned counsel for the appellants urged that the learned trial
court fell into error by summarily discarding the deposition of defence
witness DW-1 Shiv Bhagwan, who was an independent neighbor
residing across the courtyard.
63. We have scrutinized the testimony of DW-1 Shiv Bhagwan in the
light of the record. Through DW-1, the defence attempted to set up a
narrative that the deceased was armed with a danda and was the
aggressor and that Madhav wielded a vegetable knife solely in private
defence while his three brothers were absent, however, this version
stands completely belied by the contemporary investigative record. As
observed hereinabove, neither was any suggestion regarding a danda put
to the injured witness PW-1 during cross-examination, nor was any stick
recovered from the spot by the Investigating Officer (PW-9). DW-1 was
introduced as an afterthought after a considerable lapse of time to
fabricate a defence of right of private defence. In the face of the
consistent and unimpeached testimony of the injured eye-witness, the
learned trial court committed no illegality in rejecting the testimony of
DW-1 as untrustworthy and partisan.
Point No. (vii): Claim of Juvenility of Appellants No. 2 & 3 (Shiv
Kumar & Sheo Ram)

25
CRLA No. - 300 of 1985
64. So far as the plea of juvenility raised on behalf of appellant No. 2
(Shiv Kumar) and appellant No. 3 (Sheo Ram) is concerned, it is
relevant to note that although an argument regarding their minority was
advanced before the trial court at the stage of sentencing, the same was
turned down and substantive sentences were awarded. However, during
the pendency of this appeal, pursuant to applications filed by them, this
Court through successive orders—including order dated 10.02.2021
noticing their recorded age under Section 313 Cr.P.C., order dated
23.03.2021 regarding Notification under Section 60(2) of the U.P.
Children Act, 1951 and orders dated 25.08.2021 and 30.09.2021
confirming the enforcement of the said Act in District Sitapur vide
Notification dated 18.11.1977—referred the matter vide order dated
09.11.2021 to the Juvenile Justice Board, Sitapur for conducting an
inquiry. The Juvenile Justice Board, Sitapur, in Misc. Case No. 70 of
2021 and Misc. Case No. 40 of 2022, vide comprehensive orders dated
25.02.2022 and 02.05.2022 respectively, categorically declared both
appellant No. 2 and appellant No. 3 to be juveniles on the date of
commission of the alleged offence (19.04.1983); and crucially, this Court
vide its most relevant order dated 06.04.2023 passed by a Division
Bench comprising Hon'ble Attau Rahman Masoodi, J. and Hon'ble Mrs.
Saroj Yadav, J., explicitly recorded that since the aforesaid declarations
of juvenility remained unassailed by the State or the complainant, the
legal consequence thereof is that while their conviction would stand, the
substantive sentence awarded to the said juvenile appellants stands
eclipsed. Hence, in view of the uncontroverted declarations of juvenility
by the competent Board and the binding order of this Court dated
06.04.2023, while we proceed to uphold their conviction on merits along
with the other co-appellants, the substantive sentence of imprisonment
awarded to appellant No. 2 (Shiv Kumar) and appellant No. 3 (Sheo
Ram) stands eclipsed and cannot be given effect to, requiring their case
to be remitted to the Board for passing appropriate orders in accordance
with the statutory provisions.

26
CRLA No. - 300 of 1985
Point No. (viii): Scrutiny of Findings, Allegation of Ante-Timed FIR
and Patent Perversity
65. Learned counsel for the appellants lastly contended that the First
Information Report was ante-dated and fabricated after consultation with
the police, relying upon the statement made by scribe PW-3 Bankey Lal
during cross-examination that the Sub-Inspector had arrived in the
village at 10:00 P.M. and corrected certain sentences in the complaint.
66. On a meticulous examination of the chronological record, we find
this argument to be wholly meritless. The informant PW-1 clearly
deposed in his examination-in-chief that he dictated the written tehrir to
Bankey Lal, which was read over and explained to him, whereupon he
affixed his signature and proved the same as Exhibit Ka-1. Not a single
suggestion was put to PW-1 that the report was tailored under police
influence. As regards PW-3 Bankey Lal, his examination-in-chief was
recorded on 09.03.1984, whereas his cross-examination was conducted
after an unexplained hiatus of more than a month on 21.04.1984. While
he stated that the Sub-Inspector corrected sentences that were not
properly framed, he maintained that the report was scribed at the
dictation of Lachhmi Narain.
67. The incident occurred at sunset (around 06:30–07:00 P.M.) in a
rural area devoid of vehicular transport. The village Chaukidar PW-4
Guru Sewak carried the written complaint on foot across a distance of 8
kilometers to Police Station Talgaon, where the Chick FIR (Exhibit Ka-
5) was registered at 23:15 hours, followed by the immediate dispatch of
the special report to higher authorities. The learned trial court thoroughly
examined the sequence of events and recorded a categorical finding that
the FIR was lodged with utmost promptitude and was neither delayed
nor ante-timed. We find no perversity or infirmity in the said conclusion.
68. Upon a holistic appreciation of the oral, documentary and forensic
evidence in its entirety, we are of the considered opinion that the
prosecution has successfully established the guilt of the appellants
beyond all reasonable doubt and the findings recorded by the learned

27
CRLA No. - 300 of 1985
trial court suffer from no patent perversity or illegality warranting
interference in appeal.
69. In view of the discussion, analysis and findings recorded here-in-
above, the instant Criminal Appeal is hereby dismissed and the
conviction recorded by the learned trial court against all the appellants—
namely, appellant No. 1 (Madhav) under Sections 302, 307 and 324 IPC
and appellant No. 2 (Shiv Kumar), appellant No. 3 (Sheo Ram) and
appellant No. 4 (Munna) under Sections 302/34, 307/34 and 324/34 IPC,
is hereby affirmed.
70. The substantive sentences of Imprisonment for Life, 7 years' R.I.
and 1 year's R.I. awarded to appellant No. 1 (Madhav) and appellant No.
4 (Munna) are hereby confirmed. Their bail bonds are cancelled and
their sureties are discharged. They shall be taken into custody forthwith
to serve out their remaining sentences.
71. In respect of appellant No. 2 (Shiv Kumar) and appellant No. 3
(Sheo Ram), in view of the orders dated 25.02.2022 and 02.05.2022
passed by the Juvenile Justice Board, Sitapur declaring them to be
juveniles on the date of commission of the offence and the binding order
of this Court dated 06.04.2023, the substantive sentences of
imprisonment awarded to them stand eclipsed and are hereby set aside.
Their bail bonds stand discharged. Their records shall be remitted to the
Juvenile Justice Board, Sitapur, for passing appropriate orders in
accordance with the provisions of the Juvenile Justice Act.
72. Let the Trial Court Record along with a certified copy of this
judgment and order be transmitted to the trial court concerned forthwith
for information and necessary compliance.
(Pramod Kumar Srivastava,J.) (Abdul Moin,J.)
November 03, 2026
Haseenuddin
Digitally signed by :-
HASEENUDDIN
High Court of Judicature at Allahabad,
Lucknow Bench